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Racial justice

by Mimi Marziani. Ms. Marziani is the Legal Director of Battleground Texas and teaches “Election Law and Policy” at University of Texas School of Law. All views are her own.

*This post is part of ACSblog’ssymposium regardingthe 50thanniversary of the Voting Rights Act of 1965.

You may be tempted not to think too deeply about the Fifth Circuit’s decision yesterday, affirming that Texas’s photo ID law disparately burdens Black and Latino voters and thus violates Section 2 of the Voting Rights Act. Perhaps you just want to celebrate the result: that ‒ unless appellate review dictates otherwise ‒ Texas’s discriminatory law will be reformed. Or, maybe you are tired of hearing about Texas this week. On Monday, our attorney general, Ken Paxton, was indicated for securities fraud (oops) and on Tuesday, former governor Rick Perry failed to make the cut for the first GOP debate (famously, oops).

But the Fifth Circuit’s opinion underscores truths about voting in Texas that, like the Lone Star State itself, cast an oversized shadow on election law and policy nationwide.

To start: As the court recognizes, numerous empirical studies confirm that increasing the cost of voting decreases turnout. This is particularly true for low-income citizens who are, in the Fifth Circuit’s words, the “most cost sensitive.” The Texas photo ID law operates to impose severe burdens upon the poor, who are wildly less likely to have one of a few types of IDs that satisfy Texas’s law such as a driver’s license or passport, and cannot afford the necessary underlying documentation. As one voter put it during trial, before paying $42 for a birth certificate so she could get an ID, she had to weigh the significant costs to her family, explaining that “we couldn’t eat the birth certificate, and we couldn’t pay rent with the birth certificate.” Understandably, most people in that situation will not vote. The rent is too damn high.

Moreover, as the Fifth Circuit detailed, due to historical discrimination, Black and Latino Texans are, on average, less likely to graduate from high school, more likely to be unemployed, and more likely to be in poor health. These factors lead to wide income gaps — 29 percent of Blacks and 33 percent of Latinos live below the poverty line, compared to just 12 percent of Anglos. This means that the ID law’s burdens on poor voters are disparately felt by communities of color.

by William R. Yeomans, Fellow in Law and Government at American University Washington College of Law and a former acting Assistant Attorney General for Civil Rights

*This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

Access to the ballot should not be a partisan issue. Republicans, however, have teed up ballot access as a defining partisan issue. Just as this emphasis placed renewed pressure on our laws against racial discrimination, five justices fulfilled a longstanding conservative goal by disabling the requirement that states and localities with extensive histories of racial discrimination seek approval of voting changes from the federal government. Shelby County v. Holder lifted the preclearance requirement, unleashing jurisdictions to adopt photo ID laws, restrictive registration measures, shortened voting periods, and other measures that disproportionately restrict the opportunities for minority voters to cast ballots. Jurisdictions have concocted thoroughly debunked allegations of in-person voter fraud and unconvincing administrative cost justifications in support of these restrictions. As a last defense, they have sometimes conceded the partial truth – that these restrictions are designed to discourage Democrats from voting, as if that partisan purpose excuses their racial impact.

How did we reach this point where electoral partisanship is so closely entangled with race? After all, the history of our nation is one of struggle to expand the franchise to incorporate once excluded segments of the electorate. We gradually and often painfully shed voting restrictions on non-property owners, the illiterate, women, and 18-to-20-year-olds. Twice we sought to guarantee the right to vote without regard to race – first through the Fifteenth Amendment and nearly a century later through the Voting Rights Act. The undeniable message of this progression is that the country gradually embraced the notion that every citizen of sufficient age, sound mind and (in too many states) non-felonious criminal record should be permitted to vote.

Yet, partisan consequences already burdened the mind of President Lyndon Johnson when he signed the Voting Rights Act in 1965, noting that he feared his signature would hand over the South to the Republican Party. Indeed, as Democrats nationally became the party of civil rights, the once Democratic leaders of segregated southern states turned to the Republican Party, whose presidential nominee in 1964, Barry Goldwater, had opposed the 1964 Civil Rights Act. The Republican Party, led by Richard Nixon in 1968, saw political advantage in catering through its southern strategy to the backlash against the civil rights movement, Brown v. Bd. of Education and its progeny, and the civil rights laws of the 1960s.

by Gene Nichol, Boyd Tinsley Distinguished Professor, University of North Carolina School of Law

*This post is part of ACSblog’s symposium regarding the 50th anniversary of the Voting Rights Act of 1965.

In gutting what, for so many, had been the central enforcement mechanism of the iconic Voting Rights Act, Chief Justice Roberts wrote, famously, in the Shelby case, “Things have changed in the South . . . dramatically.” The “[n]ation has made great strides.” The Congress, in his view, had “failed to speak to current conditions.” Near unanimous votes in the House and Senate, reauthorizing the Act, had failed to perceive our present exalted attainment. Roberts and his four always-perceptive colleagues knew better. Black voting rights are secure here in Dixie. Bless his heart.

Within hours of the announcement, Sen. Tom Apodaca, Republican Chairman of the Rules Committee in North Carolina, announced, correctly, that the floodgate had been opened. The already-ambitious voter suppression effort the General Assembly had been considering could, as a result, shoot for the stars. “Now we can go with the full bill,” he enthused. The “headache” of the Voting Rights Act was dispatched. The bill grew from 14 pages to 57. It added 48 new sections, running the gamut of innovative electoral constraint. The Brennan Center called it the “most restrictive since the Jim Crow era.” What Roberts said no longer occurs in the southland happened immediately, here and, of course, elsewhere. Perhaps the Chief Justice was surprised. I doubt it. Certainly no one in North Carolina was.

North Carolina is 22 percent African American. Both houses of our General Assembly have massive, veto-proof Republican majorities. When they retreat to their respective caucuses to discuss and, effectively, to enact the laws that govern us, no black member is present. There aren’t any. So, in the last four years, as the legislature has racially gerrymandered our electoral districts, repealed a crucial Racial Justice Act, ushered in harsh voter ID requirements, kicked 500,000 people off Medicaid, passed the largest cut to a state unemployment compensation program in American history, and abolished the state’s earned income tax credit, no black voice, yea or nay, was offered. A white governor and an all white cabinet round out the picture. North Carolina is run by a white government. It is 2015.

When Harvard Law School’s Laurence Tribe delivered the Chautauqua Institution’s 11th annual Robert H. Jackson Lecture on the U.S. Supreme Court last week, he had a lot of material to cover. The latest Supreme Court Term was eventful. From the Court’s historic recognition of same-sex marriage equality in Obergefell to its decision to uphold the Affordable Care Act health care exchanges in King, June 2015 produced decisions that will impact the way millions of Americans live their lives.

While Professor Tribe discussed the significance of the high court’s opinions, he also addressed recent “momentous events that shook our country and complicated the meaning of our Supreme Court’s decisions,” including the racially motivated massacre at Mother Emanuel Church in Charleston which preceded the Court’s ruling in Walker v. Sons of ConfederateVeterans by less than 24 hours.

Tribe says, “My hope is to tie the electrifying events of June together with [former Supreme Court Justice] Jackson’s eloquence and pragmatism, to arrive at a brighter and larger sense of that Constitution, a less cramped understanding of constitutional law, and a more capacious vision of the Supreme Court’s role in giving the Constitution life.”

A full transcript of the speech is available here and here, and the video can be viewed below.

It turns out that an older Atticus Finch – the lawyer who in earlier years represented a black man in the novel To Kill a Mockingbird – is, according to author Harper’s Lee’s recently released book Go Set a Watchman, a racist. From the front pages of the New York Times to talk shows across the airwaves, the fictional Finch is being dissected as if he were a real life hero that has fallen from grace. There have been questions about whether the author – now 89 years old -- was too mentally infirm to consent to the publication of Go Set a Watchman. Investigators from the State of Alabama reportedly even visited Ms. Lee at her nursing home to determine whether the author’s decision to publish the novel, written prior to Mockingbird, was the product of elder abuse.

Why has this caused such a stir and why is Atticus Finch so beloved? To Kill a Mockingbird was published six years after the Supreme Court’s landmark decision in Brown v. Board of Education of Topeka Kansas, 347 U.S. 483 (1954), a decision that to some degree signaled that the legal system could be a legitimate tool to battle discrimination. Finch, of course, was a white lawyer in a southern town representing a black man. And, perhaps and maybe just perhaps, he became a symbol for others not directly impacted by racism to take on the battle in the coming years. I am, in particular, reminded of the white Justice Department Lawyers, including John Doar, who litigated voting rights cases in Mississippi in the 1960’s.

That a white man in a southern town could advocate on behalf of a black man was an important message in 1960. Back then, Harper Lee did the nation a service when she created Atticus Finch.

The publication of Go Set a Watchman comes seven years after the election of Barak Obama lulled some into belief that discrimination had seen its day, while providing others with the perception that discrimination in this era could go undetected.

The tragic shooting in Charleston, South Carolina, among other recent events, was a reminder that discrimination (to loosely borrow a phrase from the poet Langston Hughes) is festering like a sore that we notice only when it runs. Yet, look hard enough, search the internet, and it is easy to find cyber space meetings of the Klu Klux Klan and the most vulgar reminders that racism and antisemitism are unfortunately alive.

The events of Charleston were tragic and of course noticeable. Unfortunately discrimination too often is not noticeable except to the victim. Employers biased by their own perceptions can still, 50 years after the passage of the Civil Rights Act, make decisions based on race, religion or gender that are almost impossible to redress in a court of law.

I suppose that there is some sadness in learning the true prejudices of Atticus Finch. But maybe Harper Lee has once again done the nation a service by reminding us that racism – and the discrimination that it produces – can be harboured by the most unlikely of characters.